Sunday, January 30, 2011

Sticks and Stones and Words, Too

It is a tried and true practice that the first thing a lawyer should do with a fiery pleading or letter is to file it under his or her pillow.

That's Ohio Supreme Court Justice Paul Pfeifer, dissenting, from the decision of the Ohio Supreme Court to suspend Mark Gardner's license for a year (6 months probated) for mouthing off to a panel of appellate judges in a motion for reconsideration. (Did you realize that if you reverse the vowels in "panel" it spells "penal?" Just noticed that when I did it. Almost decided to leave it.) Pfeifer went on to say that Mark should have done that but didn't. Or, at any rate, didn't then toss his motion and start again. Instead, he filed it.

The decision of the Supremes in that case gave us the Mark Gardner rule which is, in its shortest form, lawyers can be severely disciplined for impugning the integrity of judges even if what they say is objectively and demonstrably true. Attack the opposing party if you must, but not the opposing lawyer. And never the judge. The last part of that is generally good advice if your goal is to win. Pissing off the judge rarely inspires the Honorable whoever to rule your way.

And so it is that probably it didn't do Arizona lawyer Tajudeen Oladiran a whole lot of good to file a Motion for a Honest and Honorable Court System, address it to "the Dishonorable Susan R. Bolton," and describe Judge Bolton as a "brainless coward."

Non-lawyers, of course, don't face the same disciplinary risks that lawyers do for saying what they shouldn't. But they are, if anything, even more inclined to violate Justice Pfeifer's advice. And so it is that pro se plaintiff Paul Hupp wrote of a panel of judges from the 9th Circuit. They were, he said,

Lots of lawyers have thought that sort of thing about judges, lots of lay people too. And I'll bet it was deeply satisfying to write. But if your goal is to get them on your side - probably not so effective. Of course, Hupp's was a motion for reconsideration. He'd already lost, and probably wasn't really hoping to prevail at this point. But one never knows.

Nor does one know about Deborah E. Frisch, Ph.D. She, too, had already lost, having been turned down for whatever by, among others, Judge Alex Kozinski or, as she refers to him, the "frocked cowfucker in San Francisco."

All of this is really by way of warning. For while it's true that non-lawyers can't lose their licenses to practice law, they can suffer not just the loss of their case but, also, the loss of their liberty. Case in point, Ray Wolfe.

Wolfe lectured the traffic officer about violating “his constitutional rights” and said he would see the officer “in federal court.”

Probably not wise, perhaps a sign of things to come, and essentially irrelevant here.

What's not irrelevant is what happened next.

He mailed the clerk’s office a jury trial demand and a list of conflict dates. For reasons explained at trial but not relevant to this appeal, court dates were scheduled which were inconvenient to Wolfe, who had returned to school, prompting him to send letters to each of the responsible judges. His first letter read, in pertinent part:

To let you know I use the word “Judge" lightly in your case. Your asshole (traffic cop) wrote me that ticket, committing constructive treason, and perjury of his oath, as you are about to do. If I come down there you damn sure won’t want me in your courtroom. I know you have people in the courthouse guarding your sorry “Communist” ass. I told you I am currently “Out OF STATE” and I demand a continuance. This is no longer a request!…I left that State to get the education so I to be able to fight on there playing field. (In the courtroom) instead of where I have been trained to fight (On the Battlefield) which may be where this winds up if you keep your shit up.

The State of Missouri has failed to provide me with justice, with the securities provided in the Missouri, and United States Constitution, and I will not pay for any injustice in Missouri “Unless it is in BLOOD.” So the question is? Do you want to meet me on my turf “The battlefield” ---JUDGE. You best leave me out of that State until I get ready to return.

His second letter read, in part, as follows:

I would refer to you as Judge but you already proved that you are not interested in justice by the warrant you issued. What do you want BLOOD, because that may be what you get.… Injustice breeds contempt, and with judges like you I am really surprised that people have not got together and started a revolution to hang communists like you, the prosecutor and of course your butt buddies that keep you busy.…I know you really do not want me in your courtroom now that you have violated my rights. You have better be glad that no officer stopped me while I was on vacation from college. As I am sure it would have made the headline news. As you might be able to ascertain by now that [sic] I am tired of your shit, and the city of Springfield’s shit! If I pay the city of Springfield anything – it will be in BLOOD.

Your lying no-good officer started this shit, I will try to make him pay the ultimate price for his lies since you do not have the integrity to do what is just, fair and proper.…[Y]ou are doing nothing more than committing usurpation and tyranny. “Tyranny and usurpation are illegal, and they may be resisted by force, and governments founded thereon may be dissolved in the same manner that people may resist robbers or pirates” (Second treatise of a civil government, p. 170, 174, 177).

There is nothing I would like to see more in this country than a good old-fashioned bloody revolution where the people can take the trash out of government and hold them accountable for the tyranny and treason that they have committed. We could once again install a people in government that is for the people and by the people, instead of the communist greedy bastards that are currently serving themselves and their masters.

With this being said and forwarded to various agencies, you can take that arrest warrant and shove it up your communist ass!

Ray was charged with two counts of tampering with a judicial officer. He was convicted by a jury. The court of appeals affirmed, despite his claim that he was simply echoing "'inspiring' words 'from his heroes.'" His lawyer told the jury that Wolfe was echoing Thomas Jefferson.

The prosecutor must have been salivating.

I might have missed some days in history class in high school, but I don't remember Thomas Jefferson ever telling you, "You can take that arrest warrant and shove it up your Communist ass."

Two counts of Tampering with a Judicial Officer. A Class C felony. I'm not licensed in Missouri, so I could readily have this wrong, but a quick glance at the sentencing law suggests that, at least in theory, each count could garner Wolfe up to 7 years in prison.

Back when I was in college a wise lawyer gave me a piece of advice I've passed on to many people over the years.

Be wary of arguing your rights with a man wearing a badge and a gun.

Here's another good piece of advice.

It is a tried and true practice that the first thing a lawyer should do with a fiery pleading or letter is to file it under his or her pillow.

Non-lawyers, too.

But you know, and here's the thing. Our clients don't mostly have good track records for making smart decisions. And they aren't terribly conscious of consequence.

It's why cranking up sentences doesn't really do much to deter. The idea of harsh sentences as deterrence is that criminals (or potential criminals) will do a cost-benefit analysis and conclude that the costs aren't worth the crime. But of course they don't. If you don't imagine you'll get caught, you don't worry about what might happen if you do. If you act on the impulse of the moment, you aren't weighing costs and benefits. If the future seems beyond conception, you don't take more than the present into account.

And if all that is you, you probably shouldn't be representing yourself in court.

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.